It’s hard to believe, but true: under a law Congress passed last year [The Idaho Observer, January 2009] aimed at regulating hazards in children’s products, the federal government has now advised that children’s books published before 1985 should not be considered safe and may in many cases be unlawful to sell or distribute. Merchants, thrift stores and booksellers may be at risk if they sell older volumes, or even give them away, without first subjecting them to testing ­at prohibitive expense.

Many used-book sellers, consignment stores, Goodwill outlets and the like have accordingly begun to refuse new donations of pre-1985 volumes, are yanking existing ones off their shelves and, in some cases, discarding them en masse.

The problem is the Consumer Product Safety Improvement Act of 2008 (CPSIA), passed by Congress last summer after the panic over lead paint on toys from China. Among its other provisions, CPSIA imposed tough new limits on lead in any products intended for use by children aged 12 or under and made those limits retroactive. Goods manufactured before the law passed cannot be sold on the used market (even in garage sales or on eBay) if they don’t conform.

The law has hit thrift stores particularly hard since many children’s products have long included lead-containing (if harmless) components: Zippers, snaps, and clasps on garments and backpacks; skateboards, bicycles, and countless other products containing metal alloy; rhinestones and beads in decorations; and so forth. Combine this measure with a new ban (also retroactive) on playthings and child-care articles that contain plastic-softening chemicals known as "phthalates" and suddenly tens of millions of commonly-encountered children’s items have become unlawful to resell, presumably destined for landfills when their owners discard them.

Penalties under the law are strict and can include $100,000 fines and prison time, regardless of whether any child is harmed.

Not until 1985 did it become unlawful to use lead pigments in the inks, dyes, and paints used in children’s books. Before then— ­and perhaps particularly in the great age of children’s-book illustration that lasted through the early 20th century—­the use of such pigments was not uncommon and testing can still detect lead residues in books today.

This doesn’t mean that the books pose any hazard to children. While lead poisoning from other sources, such as paint in old houses, remains a serious public health problem in some communities, no one seems to have been able to produce a single instance in which an American child has been made ill by the lead in old book illustrations. This is ­not surprising since, unlike poorly maintained wall paint, book pigments do not tend to flake off in large lead-laden chips for toddlers to put into their mouths.

Regardless, CPSIA’s major provisions went into effect on February 10, 2009. The day before, the Consumer Product Safety Commission (CPSC) published guidelines telling thrift stores, as well as other resellers and distributors of used goods, what they could safely keep selling and what they should consider rejecting or subjecting to (expensive) lead testing.

Confirming earlier reports, the document advised that only "ordinary" children’s books (that is, made entirely of paper, with no toylike plastic or metal elements) printed after 1985 could be placed in the safe category. Older books were pointedly left off the safe list; the commission did allow an exception for vintage collectibles whose age, price, or rarity suggested that they would most likely be used by adult collectors, rather than given to children. Since the law became effective the very next day, there was no time to waste in putting this advice into practice.

A commenter at Etsy, the large handicrafts and vintage-goods site, observed how things worked at one store: "I just came back from my local thrift store with tears in my eyes! I watched as boxes and boxes of children’s books were thrown into the garbage! Today was the deadline and I just can’t believe it! Every book they had on the shelves prior to 1985 was destroyed! I managed to grab a 1967 edition of ‘The Outsiders’ from the top of the box, but so many! People who deal in children’s books for a livelihood now face unpleasant choices."

Valorie Jacobsen of Clinton, Wisconsin, who owns a small used-book store and has sold over the Internet since 1995, commented at my blog, Overlawyered: "Our bookstore is the sole means of income for our family and we currently have over 7,000 books catalogued. In our children’s department, 35 percent of our picture books and 65 percent of our chapter books were printed before 1985."

Jacobsen has contacted the CPSC and her congressional representatives for guidance, but to no avail. "We cannot simply discard a wealth of our culture’s 19th and 20th century children’s literature over this," she writes.

Jacobsen remains defiant, if wary: "I was willing to resist the censorship of 1984 and the Fire Department of Fahrenheit 451 long before I became a bookseller, so I’d love to run a black market in quality children’s books ­but, at the same time, it’s not like the CPSC has never destroyed a small, harmless company before."

Jacobsen also worries that any temporary forbearance on the part of the CPSC, which has said that it does not plan a reseller crackdown any time soon in the absence of evidence of risk, could be abrogated without notice in the future. For one thing, new commissioners appointed by the Obama administration are expected to show less sympathy in regulating business than the current commission. In addition, the 50 state attorneys general have been empowered to enforce the law on their own and frequently take much more aggressive legal positions than those of the federal government, sometimes teaming with private lawyers who capture a share of fines imposed.

Seizing on the "collectible" loophole, commenter Carol Baicker-McGee declared: "If nothing happens to change this law soon, I promise I will spend whatever money and devote whatever space I can to buying up these older books. I’ll be happy to label myself a collector (and I’m subversive enough to leave the books lying around where kids might ‘accidentally’ read them)."

But this strategy, aside from its overtones of furtive evasion, will provide limited legal help to sellers. Under the law, they’re liable if their products will commonly be understood as intended for children’s use, even if not labeled as such.

A further question is what to do about public libraries, which daily expose children under 12 to pre-1985 editions of Anne of Green Gables, Beatrix Potter, Baden-Powell’s scouting guides, and other deadly hazards. The blogger "Design Loft" carefully examines some of the costs of CPSIA-proofing pre-1985 library holdings; they are, not surprisingly, utterly prohibitive.

The American Library Association spent months warning about the law’s implications, but its concerns fell on deaf ears in Congress (which, in this week’s stimulus bill, refused to consider an amendment by Republican Senator Jim DeMint to reform CPSIA).

The ALA now apparently intends to take the position that the law does not apply to libraries unless it hears otherwise. One can hardly blame it for this stance, but it’s far from clear that it will prevail. For one thing, the law bans the "distribution" of forbidden items, whether or not for profit. In addition, most libraries regularly raise money through book sales and will now need to consider excluding older children’s titles from those sales. One CPSC commissioner, Thomas Moore, has already called for libraries to "sequester" some undefined large fraction of pre-1985 books until more is known about their risks.

The threat to old books has surfaced so quickly in recent weeks that the elite press still seems unaware of it. The wider pattern of CPSIA’s disruptive irrationality and threat to small businesses has been covered reasonably well by the local press around the country. Some papers have investigated particular aspects of the law: ­The Los Angeles Times has tracked its menace to the garment industry, and the Washington Post and Wall Street Journal, the general plight of thrift stores, ­but almost no one has cared to consider the law’s broad array of unintended consequences, let alone ask what went wrong in the near-unanimous rush to passage of this feel-good law.

The New York Times, which last year vigorously cheered the passage of CPSIA in both its news and editorial columns, occupies a class by itself in almost completely ignoring the law’s wrenching effects as its effective date has arrived. The Times used to cover the book business, as well as apparel, retailing, and product design, to name a few of the sectors hit hard by CPSIA. Yet the paper has remained entirely silent on the law in recent weeks, aside from one brief wire-service item and a post on the paper’s automotive blog, Wheels, about the law’s effect on children’s dirt bikes (now forced off the market).

On Feb. 11, 2009, The New York Times ran an editorial solemnly condemning "book banning"; on inspection, the editorial turned out to praise an ACLU lawsuit against a school district that had removed a library book from the shelves because of its allegedly over-favorable view of Castro’s Cuba.

In any wider and more systematic prospect of book banning, The Times has shown no interest.

Whatever the future of new media may hold, ours will be a poorer world if we begin to lose (or "sequester" from children) the millions of books published before our own era. They serve as a path into history, literature and imagination for kids everywhere. They link the generations by enabling parents to pass on the stories and discoveries in which they delighted as children. Their illustrations open up worlds far removed from what kids are likely to see on the video or TV screen. Could we really be on the verge of losing all of this? And if this is what government protection of our kids means, shouldn’t we be thinking instead about protecting our kids from the government?

Walter Olson is a senior fellow at the Manhattan Institute and has covered CPSIA in depth at his blog, Overlawyered.

"The New Book Banning" was originally published in the Winter 2009 edition of The City Journal, a quarterly magazine of urban affairs published by the Manhattan Institute.

Caption: The photo above is a still taken from the 1966 film "Fahrenheit 451" by Ray Bradbury where the local fire department is doing its duty: Burning books. It used to be futuristic fiction. As of Feb. 10, 2009, per an act of Congress, all pre-1985 children’s books are banned for lead content in ink and paint—even if no one has ever been harmed by books published before 1985. Historically, book banning and book burning, for whatever reason, is not a good sign.